Freedom of information 250 years on – two challenges, two solutions

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UK Information Commissioner, Elizabeth Denham's opening remarks at the event on 8 December 2016 to mark 250 years of freedom of information. It was held at the Free Word Centre, London.

Good evening, it is lovely to be here in London celebrating a birthday. When the first Freedom of the Press Act was enacted the USA was yet to be born and Canada wasn’t even a twinkle in the eye of a tub of maple syrup. The United Kingdom was only 59 years old, the King was George III and William Pitt the Elder served as Prime Minister. FOI is getting on a bit but as it changes, evolves and adapts each birthday sees fresh reasons to celebrate the legal basis for openness and transparency.

My aim in the next five years as UK Information Commissioner is to enhance data confidence in the U.K. The transparency brought about by FOI is an important part of that mission.

I’ve been asked to spend 10 minutes talking to you to set a scene for our questions and answers and so I want to discuss two challenges that FOI faces and how I think we can respond to them.

First are the challenges and opportunities of the digital era. Digital is both a blessing and a curse for FOI.

New technology gives people more opportunities to access public information, clearer channels to request records and more ways to manipulate data for scholars and the public. Digital brings new voices to the FOI table.

But this richness of channel, of data and of audience is also a burden.

In the era of digital we create ever increasing quantities of facts, figures and opinions. You could argue that we are drowning in information. But these masses of potential answers can become ever less permanent in the absence of a duty to document.

A positive, legal obligation to document actions and decisions is my answer to the challenge of decisions taken by text, by instant message, by email.

If public authorities are placed under an effective duty to document regime then we are telling them to write down their decisions, to note their reasons and most importantly to write things down well.

Freedom of Information is only valuable if the information is created in the first place. And if it properly retained.. There can be no gaps and no missing pieces if the institutional memories we create are to be tangible.

So that is my first challenge to FOI – the weight of ephemeral data – and my first solution – the duty to document.

Now I move on to my second challenge and this is something I see as a bigger issue here in the UK than I did back in Canada. That is outsourcing of public services.When a public service departs from a public body under an outsourcing contract, I do not believe that the requirements of FOI should melt away as the contractor takes over.

I am not only talking about the need for financial transparency.

If a council runs a swimming pool, information about the pool falls clearly under FOI legislation. If a council pays a company to run that pool why should the same information not be available?

Does the water quality become less important?

Do the pool usage figures suddenly have less of an impact on the obesity crisis?

Should the public accountability of an official running a public service become less when they are a member of a board of directors rather than a member of a council?

I say that the answers to these questions should all be a clear ‘no’.

This isn’t just about contracts and the public pound, even though that is a useful way of seeing which services should fall under the requirements of FOI.

Health services, justice agencies, educational establishments all provide public services and their legal structure, which is irrelevant to the public, should not exempt them from the need for transparency.

So the challenge is transparency in outsourcing and my solution is simple.

We should extend the right to know about public services so that it is independent of the service provider.

Whether public, private or third sector organisations are delivering a service, the public’s right to know should stand unchallenged.

When we pull back the curtain using our rights to access we should see the whole picture – not just the edited highlights.

This is not just rhetoric. I’m taking practical action on this challenge. The ICO will place a report before Parliament next year on the subject of outsourcing and transparency. I will place the ball – and my evidence – squarely in Parliament’s court.

So there you go. Two challenges and two solutions. My prescription for the future. Easy, right?

Of course it isn’t. The devil will, as always, be in the details and the need for transparency will always face a fight with the desire of some to control information flows and hide what they are doing.

But the best things in life are never simple and to quote JFK – we choose to do these things not because they are easy but because they are hard.

For 250 years FOI has been hard. It has also been a roaring success. I have offered up two challenges and two solutions, while you will all have many more examples of both difficulties and victories. The first 250 years of FOI have improved our culture, our rights, our communities. Thanks to all of you in this room, and the people who follow behind us – I believe the next 250 years will see ever greater success.

An audio download of Elizabeth Denham's speech is now available at the Campaign for Freedom of Information website.